DUI refusal requires retest after insufficient sample

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Indiana law requires law enforcement officers to administer a second chemical breath test if the first test produces an insufficient sample, unless the person taking the test demonstrates a clear unwillingness to cooperate, the Indiana Supreme Court ruled in an opinion reinstating a woman’s driving privileges.

When Indiana State Police Trooper Joshua Graves stopped Keyaunna Hurley in October 2015, he suspected she was intoxicated and asked her to complete various field sobriety tests, which she failed. Hurley then agreed to submit to a chemical breath test at a nearby police station, but after blowing into the test three times, the results indicated an “insufficient sample.”

Though Graves conceded Hurley was “completely cooperative throughout this process,” he did not allow her to blow three more times for a second test. Instead, the trooper charged Hurley with refusing to submit to the test, and the Bureau of Motor Vehicles suspended her license for one year.

Hurley objected to the notion she had refused the test, arguing instead that Graves had not followed the proper regulations for the test and that there was insufficient evidence to support his conclusion she had refused. The Marion Superior Court upheld Graves’ decision, and the Indiana Court of Appeals affirmed in June 2016.

The Indiana Supreme Court heard the case on petition to transfer in December, when Hurley’s counsel argued Graves was required to administer a second test before determining if she was intentionally uncooperative. The high court agreed in a Wednesday opinion, which granted transfer to the case of Keyaunna Hurley v. State of Indiana, 49S05-1705-CR-346, and reversed the suspension of Hurley’s driving privileges.

Justice Geoffrey Slaughter, writing for the unanimous court, said the case turned on the question of whether Title 260, section 2-4-2 of Indiana’s Administrative Code, also known as the “Breath-Test Rule,” required Graves to administer a second test to Hurley before recording a refusal. The high court answered that question with a “Yes,” with Slaughter writing an officer can only determine a lack of cooperation after the first test if “the subject clearly manifests an unwillingness to take the test.”

In Hurley’s case, there is no indication in the record she refused to take the test, Slaughter said. Further, the court, relying on Court of Appeals precedent, held “a person does not refuse a chemical test if the officer failed to comply with the rules for conducting it.”

Slaughter then pointed to section 2-4-2(b)(5) of the Breath-Test Rule, which holds, “If ‘Insufficient Sample’… is printed on the instrument report, perform an additional breath test … .” That rule presumptively required Graves to offer Hurley a second test, the court held.

“But this presumptive obligation to offer a second test is not absolute,” Slaughter continued. “The Rule does not require an officer to administer a second test to a subject who obviously is not cooperating in providing one or more measurable, recordable breath samples. Officers must – and do – have discretion under the Rule to make the judgment call that the subject is being uncooperative and thus has refused the test.”

In this case, however, Hurley did nothing “clearly constituting a ‘manifest unwillingness to submit to the test.’” Thus, the suspension of Hurley’s license was vacated and her driving privileges were reinstated.


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